mussa daniel

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA LAND CASE APPEAL NO. 22 OF 2023 (Originating from the District Land and Housing Tribunal for Tabora in Land Application No. 119 of 2019) MUSSA DANIEL MARTIN .............................. APPELLANT VERSUS AMRAN HASSAN MSIGALA................... RESPONDENT JUDGMENT Date ofLast Order:13.08.2024 Date ofJudgment: 17.09.2024 KADILli, J. In 2019, the respondent filed a land case in the District Land and Housing Tribunal (DLHT) for Tabora praying for the tribunal to order the appellant to give vacant possession of a suit property after the respondent had purchased it. A brief background of the matter is that on 07/10/2019, the respondent bought from the appellant a house built on Plot No. 424 Block "A" located at Mawiti within Tabora Municipality for TZS. 4,500,000/=. They signed a sale agreement and the appellant handed over to the respondent a Certificate of Occupancy of the disputed property to perfect the transaction. When the respondent wanted to take possession of the said house, the appellant resisted alleging that he did not sell the house to the respondent but he only gave it to him as a security for loan. The respondent denied having known the appellant before they met for the sale of such a house and he averred that he was not conducting money lending business so, he could not lend any money to the respondent. In the end, the DLHT decided the case in favour of the respondent by declaring him the lawful i owner of the suit property. It ordered the appellant to vacate the suit property. Also, the DLHT ordered the respondent to refund TZS. 1,650,000/= to the appellant, the amount which was given to him in an attempt to resolve the dispute amicably after it became barren of fruits. The appellant was aggrieved by the decision of the DLHT hence, he filed the instant appeal armed with the following grounds: 1. That, the learned trial Chairman erred in law and fact in declaring the respondent the lawful owner of the suit premise on the allegation that he purchased it from the appellant. 2. That, the learned trial Chairman erred in law and fact by not evaluating the evidence tendered by the appellant and his witnesses who proved that the suit property was not sold to the respondent but Was pledged as a security for a loan of TZS. 4,500,000/= issued by the respondent to the appellant. 3. That, the learned trial Chairman erred in law and fact by Ordering the appellant to refund the respondent TZS. 1,650,000/= paid by the appellant to the respondent as part payment of the borrowed amount instead of ordering the appellant to pay the respondent the remaining balance of the loan to wit, TZS. 2,850,000/=. 4. That, thejudgment ofthe trialtribunalis defective for being in variance with the decree. Based on the above grounds, the appellant prayed for the court to nullify and set aside the proceedings, judgment, and decree of the DLHT in Land Application No. 119 of 2019, or declare the appellant the rightful owner of the suit land and order him to pay TZS. 2,850,000/= to the respondent as the remaining balance of the loan. The respondent filed a reply to the petition of appeal in which he stated that he proved the purchase of the house in dispute on the balance of 2 probabilities using exhibit Pl (sale agreement) which was admitted without an objection from the appellant. He added that since the alleged loan agreement was not tendered before the trial tribunal, the appellants empty words cannot prove, vary, contradict, subtract, or add to the contents of a written contract (sale agreement). The respondent opined that the learned trial Chairman was justified in ordering him to refund the appellant TZS. 1,650,000/= because the appellant failed to repay the respondent TZS. 4,500,000/= being the purchase price of the house. He, thus, urged the court to dismiss the appeal with costs. During the hearing of the appeal, the parties appeared in person without legal representation. The appellant requested to abandon the 4th ground of appeal after he failed to submit anything about it. He asked the respondent to submit first. Starting with the 1st ground of appeal, the respondent stated that he purchased a partly constructed house from the appellant and they signed a sale agreement. He elaborated that the sale price was TZS. 4,500,000/=. During the transfer of ownership, the respondent realized that the appellant was not the owner of the disputed house though he handed an original certificate of occupancy to the respondent. On the 2nd ground, the respondent refuted the allegation that he lent the appellant TZS. 4,500,000/=. He explained that he had never been engaged in the business of lending money. Concerning the 3rd ground, the respondent asserted that the Chairman was correct in ordering him to refund TZS. 1,650,000/= to the appellant because he was the one who requested it. He was late to return the purchase price and, in the end, he repaid TZS. 3 1,500,000/= only. The respondent reiterated that he proved the case to the standard so, he prayed for the appeal to be dismissed because it is calculated to delay justice. Responding to the 1st ground, the appellant submitted that the agreement for the sale of the disputed land was invalid because it alleged that a person named therein is his wife while she is not. He elaborated that his wife's name is Pendo Zacharia while the other woman is called Hafsa Khasim. A certificate of occupancy bears the appellant's name so, he argued that the house is his. He elaborated that the respondent agreed to be paid TZS. 1,650,000/= as part payment of the debt which was TZS. 4,500,000/=. Therefore, he is entitled to TZS. 2,850,000/=, not the house. About the 2nd ground of appeal, the appellant stated that the tribunal erred in ordering the respondent to refund him TZS. 1,650,000/= instead of ordering him to repay the respondent the outstanding TZS. 2,850,000/=. He prayed the appeal be allowed by declaring him the lawful owner of the land in dispute and that, the respondent is entitled to the payment of TZS. 2,850,000/= as the outstanding debt. I have gone through the records, the grounds of appeal, and submissions by the parties. I find it convenient to start with the 2nd ground of appeal in which the appellant complains that the learned trial Chairman by not evaluating the evidence tendered by the appellant and his witnesses who proved that the suit property was not sold to the respondent but was pledged as a security for a loan. The record reveals how the respondent testified in detail that he purchased the suit property from the appellant and he tendered the sale agreement, exhibit Pl. 4 Exhibit Pl is unambiguous. It displays that it is an agreement between the appellant and the respondent for the sale of a house. Having regard to the witnesses' testimonies, exhibits tendered, and arguments presented during the hearing, I have no hesitation in concluding that there was an enforceable contract between the parties herein. A critical examination of exhibit Pl reveals that it has all the qualities of a valid contract. Section 10 of the Law of Contract Act, [Cap. 345 R.E. 2019] provides that: W/ agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void."" The facts of this case do not reveal anywhere that any of the parties was forced to enter into a sale agreement with the other. Further, the capacity of the parties to enter into the said contract is unquestionable. There is also no doubt about the lawfulness of the consideration herein and, no illegality was raised concerning the parties'agreement. The appellant told the trial tribunal that they intended to contract for the lending of money but they had to write that he sold his house to the respondent because the latter had no legally recognized money-lending business. On this assertion, I wish to point out that where the agreement is in writing, no oral evidence may be given by the parties to the agreement or their representatives to contradict or vary the written terms. See Section 100 (1) of the Evidence Act, [Cap. 6 R.E. 2022].Thus, once the terms of the contract are reduced in writing, oral evidence as to the terms of that contract is excluded and unacceptable. It is a cardinal principle 5 of the law of contract that parties are bound by the terms of the agreements they enter on their own free will. The court is not supposed to accept any prayer from the party which amounts to interpolation of new terms and conditions as doing so will amount to tempering with the agreement the parties had entered into. The court's role is to give effect to what the parties have agreed upon. For these reasons, I find the 2 nd ground of appeal as baseless because the appellant may not be allowed to vary the terms of exhibit Pl. On the 3rd ground of appeal, the appellant contends that the learned trial Chairman erred by ordering the respondent to refund him TZS. 1,650,000/= as part payment of the borrowed amount instead of ordering the appellant to pay the respondent the remaining balance of the loan to wit, TZS. 2,850,000/=. This ground does not need to detain me here because the record is clear that the payments were made at the initial stages of the dispute while trying to resolve the dispute amicably. As the attempt became unsuccessful, there was no justification for the respondent to retain the appellants money. The trial Chairman was categorical about it as visible on page 5 of the typed judgment. Therefore, the 3rd ground of appeal is also barren of merit and I dismiss it. Turning to the 1st ground of appeal, the appellant alleges that the learned trial Chairman erred in declaring the respondent the lawful owner of the suit premise on the allegation that he purchased it from the appellant. I have partly resolved this point when determining the 2nd ground of appeal. I have already shown that the sale agreement between the appellant and the respondent was valid and binding upon the parties. Upon applying the 6 law to the facts of this case, I find that in the circumstances of this case, the doctrine of estoppel applies against the appellant. The said doctrine estops the appellant from turning around and defaulting on what he had agreed and committed himself to after the respondent had performed his part of the agreement. The respondent, in reliance on the agreement and commitment shown by the appellant, acted in reliance on the same. Section 123 of the Evidence Act provides that: "When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon that belief, neither he nor his representative shall be allowed, in any suit or proceedings between himself and that person or his represen tative, to deny the truth of that thing." The above provision was interpreted in the case of Bytrade Tanzania Limited v. Assenga Agrovet Company Limited & Another, Civil Appeal No. 64 of 2018, in which the Court of Appeal held that: "The true principle of promissory estoppel is where one party has by his words or conduct made to the other a dear and unequivocal promise which Is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it." The appellant avers in addition that exhibit Pl did not qualify for admission because it does not bear a stamp duty. The argument may be valid but it is but of context as when the respondent sought to tender exhibit Pl, the learned Chairman asked the appellant if he had any objection. He 7 replied that he had none. He cannot, therefore, be allowed to object to the admission of exhibit Pl at this stage. He contends further that exhibit Pl is a forgery because it was signed by Hafsa Kasim who purported to be his wife while she is not and she did not tender a marriage certificate. The appellant summoned one Pendo Zacharia who testified as his wife. With due respect, it was the appellant who introduced Hafsa to the respondent as his wife and a witness to the sale transaction. Surprisingly, the said Hafsa was not summoned as a witness instead, the appellant called Pendo. Pendo did not as well produce a marriage certificate to prove that she is the appellant's wife. It is inconceivable why the appellant wishes the court to believe that Pendo is his wife but Hafsa is not. From the foregoing analysis, I find the appellant's assertation that he did not sell the suit property to the respondent rather he pledged it as a security for the loan, is an afterthought that is not permissible in law. Henceforth, I dismiss the 1st ground of appeal for want of merit. It is for the reasons stated above that the court finds the entire appeal devoid of merits. Consequently, I do not find any reason to disturb the findings of the trial tribunal. I, thus, dismiss the whole appeal with costs. The right of appeal is fully explained for any aggrieved party. Order accordingly. 8 The Judgment delivered in chamber on the 17th day of September, 2024 in the presence of Mr. Emmanuel Biyengo holding brief for the appellant, and Mr. Amran Hassan Msigala, the respondent. DILU, MJ. JUDGE 17/09/2024 9